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Justiciability

Everyone has the right to education and this right is guaranteed in international and regional human rights law. However, for the right to education to be fully realised it must be effectively implemented at the national level through the adoption of constitutional provisions, legislation, and policies. But, it is not enough to have a legal right; enforcement mechanisms must also be in place. This includes the possibility of legal recourse, which requires that the right to education be justiciable.

Justiciability refers to the amenability of an issue to be adjudicated upon in judicial or quasi-judicial (such as UN treaty bodies and the European Committee of Social Rights) fora. A justiciable right to education means that when this right is violated, the right-holder can take her claim before an independent and impartial body, and if the claim is upheld, be granted a remedy, which can then be enforced (International Commission of Jurists 2008:1).

If rights are justiciable, courts can ensure that the state is held accountable for its actions, in accordance with international, regional, and domestic human rights obligations. It also means that civil society can be more effective in campaigning, advocating, and mobilising for accountability and change.

Justiciable rights mean that when violations have occurred, there exists a right to an effective remedy – in this case, a judicial or quasi-judicial remedy. Access to justice is important because it provides an opportunity to hold violators to account, deters others from violating fundamental human rights, and discourages impunity.

One of the ways courts hold states to account is by granting remedies to address the harms done to the complainant, for example, through injunctions, preventative measures, recommending policy measures, striking down laws, administrative penalties, and criminal punishment. In some instances, these remedies benefit more than just the claimant but also all those affected or likely to be affected by the actions (or inactions) that led to the case being heard. Courts can also award compensation.

An important function of courts is to give persons belonging to marginalised groups a ‘voice’ in democratic systems that may otherwise neglect their interests, especially through judicial review proceedings. In addition, litigation - even when cases fail - offers an important avenue to publicise human rights violations and attract media attention, which may lead to accountability and change in the future.

Lastly, judicial and quasi-judicial bodies play a pivotal role in clarifying the content and scope of the right to education; progressively identifying its justiciable elements; as well as finding innovative ways to adjudicate on issues concerning economic, social, and cultural rights. Judicial enforcement of the right to education in other jurisdictions can help states to understand how economic, social, and cultural rights can be adjudicated to better meet their obligations under international law.

The adoption of two separate instruments, as opposed to a unified Bill of Rights, was made for a variety of reasons. One of which was the view that ESCR are conceptually different to CPR because they are not justiciable.

The most common argument against the justiciability of ESCR is that they may impose very different obligations on states compared with CPR. Take, for example, freedom of religion; this right imposes a negative duty on the state to avoid interference with an individual’s right to belong to and practice her religion. Conversely, the right to education may require the establishment of schools, the training of teachers, and access to learning materials, etc. The nature of the obligations imposed on states are often positive and burdensome. So when judges make decisions concerning ESCR, they are making decisions about the allocation of resources and are therefore effectively making policy decisions, violating the normative principle of the separation of powers. But this is disingenuous, CPR also entail redistributive consequences. For example, the right to a fair trial entails many costs, including - but not limited to - the training of judges, court costs, and the provision of legal aid. In other words, all human rights are composed of different types of obligations: to abstain from interference and to take measures to make enjoyment possible. The right to education is a good example of this. Its realisation requires states not to interfere in the free choice of education by parents and children, while at the same time it requires states to build schools and pay teachers.

Today, it is generally accepted that all human rights are indivisible, interdependent, and interrelated (Vienna Declaration and Programme of Action, 1993: Para. 5). This is reflected at the international level through the adoption of treaties that combine CPR and ESCR, such as the Convention on the Rights of the Child (CRC. 1989). Furthermore, the recent entry into force of complaints procedures for the ICESCR and the CRC attest to the importance of redressing violations of all ESCR. In addition, the work of national and regional courts provides increasing evidence that there is no legal or conceptual impediment to identifying and adjudicating violations of ESCR, particularly the right to education.

In 2000, Katarina Tomasevski, the first UN Special Rapporteur on the right to education said: 'the general question of whether economic, social and cultural rights are justiciable does not apply to the right to education, which is litigated both domestically and internationally' (Progress report on the right to education, 2000).

The right to education has been subject to judicial and quasi-judicial scrutiny across many different jurisdictions and an important body of case-law is evident at national, regional, and international level.

Some states have enshrined the right to education in their constitutions making it justiciable at the constitutional level. In India, the right to free and compulsory education was recognised in the Constitution in 2002 following an historic decision by the Supreme Court (Unni Krishman, J.P. v. State of A.P. (1993)) which ruled that the right to education was an integral part of the right to life, rendering the right to education indirectly justiciable.

As the right to education is increasingly subject to adjudication, judges are becoming more adept at interpreting and clarifying exactly what the right to education entails. In the past, most courts were only willing to adjudicate on violations of the right to education if the case involved discrimination or unequal treatment. The scope of the right to education was very narrow. However, as the right to education is further applied, its scope has widened and it has become more entrenched - and increasingly justiciable. Justiciable elements of the right to education now include educational freedom, quality education, compulsory and free education, and education financing.

There are numerous examples of cases regarding different aspects of the right to education that have been subject to judicial scrutiny.

National

The aspect of the right to education most amenable to judicial scrutiny is non-discrimination. Cases of discrimination have long been adjudicated on in most courts. For example, in Brown v. Board of Education, the US Supreme Court found that racial segregation in schools was a violation of the equal protection clause of the US Constitution. The Supreme Court stated: 'We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal...'

National courts have also heard cases on education financing, an important issue that profoundly affects the accessibility and quality of education. From 2005 to 2007 a public law charity in Indonesia brought a series of cases to the Constitutional Court claiming that a new law that sought to bring education spending up to 20% of the budget gradually and successive budgets that only allocated 7% and 8.1% to education, were in breach of the Constitution which provides that 20% of the national budget must be dedicated to the provision of education. The Court ruled that the law and both budget allocations were unconstitutional, striking down the law. It did not void the budget, however, it ordered that if any extra revenue became available, it must be allocated to education. Despite the reluctance of the Court to go further, spending on education in Indonesia had risen to 11.8% by 2008, no doubt due to the Court’s influence.

Related to education financing is the issue of privatisation and private schools. In a recent decision, the Supreme Court of Nepal issued a verdict demanding educational authorities devise reform programmes to regulate private schools – regulating fees, prohibiting the sale of unregistered and over-priced textbooks, and limiting the number of private schools gaining accreditation. In addition, the private sector cannot raise fees for three years as exorbitant fees charged by private providers of education are causing greater social and economic disparity between working and middle classes.

Regional

Regional mechanisms provide an important source of right to education case-law as states are held accountable above the national level. In Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976), the European Court of Human Rights ruled that compulsory sex education classes, as prescribed by the national curriculum, do not amount to indoctrination, and therefore do not violate the 'right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions' (Article 2, Protocol 1 of the European Convention on Human Rights, 1950).

The African Commission on Human and People’s Rights in Rights Free Legal Assistance Group and Others v. Zaire (1995) found that a two-year-long closure of universities and secondary schools in Zaire (as it was at the time) due to the gross mismanagement of public finances, was a violation of the right to education (Article 17) as enumerated in the African Charter on Human and People’s Rights.

In Case 2137 Argentina (1978) the Inter-American Commission on Human Rights found a violation of the right to education (Article XII) as guaranteed by the American Declaration of the Rights of Man. In this case, the Argentine government issued a decree banning the activities of Jehovah’s Witnesses, as well prohibiting 'pupils professing the religion of Jehovah’s Witnesses' from sitting exams. The complainants also alleged that more than 300 school-age children were denied primary education. The Commission recommended that the Decree be repealed.

International

At the international level, the right to education has been made justiciable through the recent entry into force of complaints procedures for the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. As these mechanisms become more established, a growing body of international case-law will emerge.

As aforementioned, it is not enough to have legally guaranteed rights; rights must be justiciable and enforceable. In some jurisdictions, barriers to achieving the full justiciability of the right to education still persist. For example, procedural barriers, lack of judicial independence, and the capability and willingness of judges to adjudicate on such matters.

However, even when the right to education is justiciable there remain barriers to accessing justice. In a recent report on the justiciability of the right to education, the Special Rapporteur on the right to education highlighted the challenges facing those (particularly members of marginalised groups) who want to bring allegations of violations to court. They include:

the lack of awareness of persons belonging to marginalised groups regarding their rights and existing mechanisms in cases of violations;

the high financial cost of pursuing legal remedies;

difficulty finding legal advice and adequate representation;

cultural barriers including poor languages skills in the case of linguistic minorities, fear of reprisals, or other barriers such as the rights of women to represent themselves; and

procedural barriers such as rules of standing that prevent children and their parents, and third parties from bringing a claim, as well as the formality of court procedures, which makes accessing courts very difficult.

Civil society has an important role to play in overcoming the above challenges in accessing justice, for instance in disseminating information regarding the right to education to parents, teachers and schools administrators, and also in identifying and publicising violations of the right to education.

Success stories have also shown that civil society can play an important role in litigating cases. For an example of how civil society has successfully litigated to protect the right to education, see SECTION27’s Success Story on the Limpopo textbook crisis in South Africa.